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New Jersey establishes new leave rights and obligations under NJ SAFE Act

If the need for leave under the NJ SAFE Act is foreseeable, employees are required to give written notice to the employer as far in advance as is reasonable and practical under the circumstances.

New Jersey Governor Chris Christie recently signed into law the New Jersey Security and Financial Empowerment Act, commonly known as the "NJ SAFE Act," which allows an eligible employee to take 20 days of unpaid leave during a 12-month period in the event the employee or the employee's child, parent, spouse, domestic partner or civil union partner is a victim of domestic violence or sexual assault. This new law applies to New Jersey employers with 25 or more employees and has an effective date of October 1, 2013.

To be eligible for leave under the NJ SAFE Act, an employee must work for the employer for at least 12 months and have worked 1,000 hours or more during the preceding 12-month period. Unpaid leave under the NJ SAFE Act must be taken within one year of the incident of domestic violence or sexual assault and may be taken intermittently with employer approval in intervals of no less than one day. The purpose of the law to is allow employees who are assault victims or are caring for family members who are victims to have time to engage in the following activities associated with the incident without fear of losing their jobs: (1) seeking medical attention for, or recovering from, physical or psychological injuries; (2) obtaining services from victim assistance programs; (3) receiving psychological or other counseling; (4) relocating or taking other steps to increase the safety of themselves or the victim; (5) seeking legal assistance; and (6) participating in civil or criminal court proceedings related to the incident of domestic or sexual violence.

If the need for leave under the NJ SAFE Act is foreseeable, employees are required to give written notice to the employer as far in advance as is reasonable and practical under the circumstances. Employers may request documentation supporting the need for leave. Employees can satisfy this requirement by providing a copy of any applicable restraining order; a letter from the prosecutor; documentation of the conviction of the assailant; medical documentation of the victim; a certification from a certified Domestic Violence Specialist or Rape Crisis Center employee; or a certification or other documentation from a social worker, clergy member, shelter worker or other professional who assisted the victim.

Employers will be required to display a conspicuous notice of employees' rights under the NJ SAFE Act in a form prescribed by the Commissioner of Labor and Workforce Development and use other appropriate means to inform employees of these new rights. The Commissioner has yet to publish the required notice. We will issue a follow-up Alert to advise on when the notice becomes available, which is anticipated to be sometime this September.

Like most employment laws in New Jersey, the NJ SAFE Act prohibits retaliation against employees for the exercise of rights granted by the Act. Existing and former employees have a private right of action and can seek legal relief in the Superior Court for violations of the NJ SAFE Act within one year of the alleged violation. A prevailing plaintiff may recover economic and non-economic damages and reasonable attorneys' fees and costs. The court may also order reinstatement of the employee, enjoin the employer from continued violation of the Act and impose a civil fine between $1,000 and $2,000 for a first violation and not more than $5,000 for each subsequent violation of the NJ SAFE Act.

What This Means for New Jersey Employers

New Jersey employers with 25 or more employees may want to update their employee handbooks to ensure that their leave policies include leave rights under the NJ SAFE Act as of October 1, 2013. Once the New Jersey Department of Labor and Workforce Development publishes the required notice, employers will need to post and disseminate the notice to all staff. Employers who conduct training internally on the subject of prohibited retaliation in the workplace should also include in their training modules reference to the anti-retaliation provision of the NJ SAFE Act.

Employers whose handbooks have not been reviewed recently for compliance with the ever-changing state and federal employment law landscape should consider adding review of the company handbook on their "to-do list."

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